May a senior judge advertise mediation services to unrepresented persons in publications not directed to lawyers as long as the senior judge does not indicate that the senior judge ever served as a judge?

ANSWER: No.

FACTS

As a Florida Supreme Court certified family mediator, the Inquiring Senior Judge mediates twice a week for a county-court program in the Inquiring Judge’s circuit. The Inquiring Judge would also like to begin a private mediation practice.

The Inquiring Judge is concerned about the reach and effect of the underlined language contained in Canon 5F(2) of the Code:

A senior judge may serve as a mediator in a case in which the senior judge is not presiding only if the senior judge is certified pursuant to rule 10.100, Florida Rules for Certified and Court-Appointed Mediators. Such senior judge may be associated with entities that are solely engaged in offering mediation or other alternative dispute resolution services but that are not otherwise engaged in the practice of law. However, such senior judge may in no other way advertise, solicit business, associate with a law firm, or participate in any other activity that directly or indirectly promotes his or her mediation services. A senior judge shall not serve as a mediator in any case in which the judge is currently presiding. A senior judge who provides mediation services shall not preside over the same type of case the judge mediates in the circuit where the mediation services are provided; however, a senior judge may preside over other types of cases (e.g., criminal, juvenile, family law, probate) in the same circuit and may preside over cases in circuits in which the judge does not provide mediation services. A senior judge shall disclose if the judge is being utilized or has been utilized as a mediator by any party, attorney, or law firm involved in the case pending before the senior judge. Absent express consent of all parties, a senior judge is prohibited from presiding over any case involving any party, attorney, or law firm that is utilizing or has utilized the judge as a mediator within the previous three years. A senior judge shall disclose any negotiations or agreements for the provision of mediation services between the senior judge and any of the parties or counsel to the case.

Fla. Code Jud. Conduct, Canon 5F(2) (emphasis supplied).

As the Inquiring Judge interprets it, because the Code prohibition is intended to avoid or minimize “conflicts and the appearance of a senior judge’s partiality resulting from the senior judge’s solicitation of mediation work from attorneys who appear or may appear before the senior judge in a case,” the Code need not be read to prohibit advertising to non-lawyers as the Inquiring Senior Judge contemplates doing. We disagree.

DISCUSSION

In Florida JEAC Opinion 93-06, a member of this committee “opined that it may be inconsistent for a retired judge competing for mediation business to be on the bench occasionally making decisions in cases involving lawyers from whom he or she may be seeking mediation business.” The Code has since been amended to settle the question of whether and under what circumstances a senior judge may serve as a mediator.

One of the restrictions specifically addressed in this section of the Code pertains to advertising. The commentary to Canon 5F(2) provides that the “purpose of these admonitions is to ensure that the senior judge’s impartiality is not subject to [reasonable] question.” The commentary also makes clear that one of the specific purposes of Canon 5F(2) is to “prohibit a senior judge from soliciting lawyers to use his or her mediation services when those lawyers are or may be before the judge where the senior judge is acting in a judicial capacity.” Commentary, Fla. Code Jud. Conduct, Canon 5F(2).

Pro se litigants, like lawyers, may also find themselves before a senior judge who has solicited them to use his or her mediation services, unless necessary precautions are observed. Advertising aimed at lay people is, after all, another way to “advertise [or] solicit business.” With exceptions not pertinent here, the Canon clearly proscribes such advertisement and solicitation, and allows it “in no other way” than as specifically provided. Fla. Code Jud. Conduct, Canon 5F(2). The Code forbids not only solicitation and direct advertising of mediation services, but also “any other activity that directly or indirectly promotes his or her mediation services.” Id. In light of the clear and categorical language of the canon, the course of action the inquiring judge contemplates would be prohibited.

The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting the judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualifications Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.